The Centre’s rapid endorsement of the elevation of two judges to the Supreme Court earlier this month has overshadowed an undeclared segregation policy under which the government has sat on some names recommended by the collegium for appointment as judges to various high courts, including the one in Calcutta.

Such a policy of selective clearance has affected not only the smooth functioning of some high courts — Calcutta High Court has as many as 30 vacancies — but also the seniority of those whose appointments are yet to be decided.

A part of the delay could be the result of “adverse” remarks from the Intelligence Bureau but “some others are not cleared because the political dispensation finds certain names inconvenient”, a source in judiciary told The Telegraph.

The source underlined that firmness displayed by the present Chief Justice of India, N.V. Ramana, has helped clear a record 11 names for the Supreme Court and over 130 for the various high courts. On May 7, the Centre had cleared the names of Justice Sudhanshu Dhulia, chief justice of Gauhati High Court, and Justice J.B. Pardiwala, one of the judges in Gujarat High Court, as judges of the Supreme Court in less than 48 hours after the collegium made the recommendations.

However, the Centre’s policy of withholding certain names from a list of recommendations made by the collegium and approving some names is causing considerable heartburn in judicial circles because a senior becomes a junior and vice versa when the actual appointments are made, the source added.

All names used to be cleared at one go till the time Justice R.M. Lodha was Chief Justice of India. After Justice Lodha demitted office in April 2014, successive CJIs had failed to demonstrate the requisite firmness in getting the names cleared once they are iterated, some sources said.

For instance, on April 27 this year, the President cleared Justices Kesang Doma Bhutia (who has since retired), Rabindranath Samanta, Sugato Majumdar, Bivas Pattanayak and Ananda Kumar Mukherjee — all additional judges of Calcutta High Court — as permanent judges of the court. These judges had been appointed initially on August 27, 2021.

Thereafter, three others — Justices Krishna Rao, Bibhas Ranjan De and Ajoy Kumar Mukherjee — were made judges of Calcutta High Court through an order dated November 18, 2021.

This was followed by another notification on May 14 when the President approved the names of Justices Ananya Bandyopadhyay, Rai Chattopadhyay and Subhendu Samanta as additional judges of Calcutta High Court.

Judicial sources said the Centre had cleared these names without taking a decision on several names that had been recommended much earlier and, in many cases, iterated by the Supreme Court collegium.

Among those recommended but not cleared for Calcutta High Court are senior advocate Amitesh Banerjee, son of the former Supreme Court judge Justice U.C. Banerjee who headed the one-man commission that had ruled out a conspiracy behind the Godhra train fire that killed 59 kar sevaks, and advocate Sakya Sen, son of former Allahabad High Court Chief Justice Shyamal Sen.

The following are some of the candidates whose recommendations were reiterated by the collegium but on whose appointment the Centre continues to sit:

⚫ Jaytosh Majumdar (advocate), first recommended on July 24, 2019; iterated on September 1, 2021.

⚫ Amitesh Banerjee (advocate), first recommended on July 24, 2019; iterated September 1, 2021.

⚫ Raja Basu Chowdhury (advocate), first recommended on July 24, 2019; iterated on September 1, 2021.

⚫ Lapita Banerji (advocate), first recommended on July 24, 2019; iterated on September 1, 2021.

Several other candidates recommended later have been cleared by the Centre and they are now serving as judges of Calcutta High Court.

Kirpal’s case

Similar is the case of senior advocate Saurabh Kirpal who was cleared on November 15, 2021, for Delhi High Court by the present collegium under Justice Ramana.

The collegium’s recommendation of Kirpal marked a milestone as he is the first gay candidate to make it to such a shortlist. The Centre had objected to him four times during initial enquiries.

Kirpal, recommended for appointment as a Delhi High Court judge, has seen his candidature deferred four times since 2018 during the tenures of then Chief Justices of India Ranjan Gogoi and S.A. Bobde, sources said.

Kirpal’s appointment has not been cleared so far but over half-a-dozen others recommended later have been made judges of Delhi High Court.

It was reported that the Centre was averse to Kirpal’s elevation owing to his having a foreign partner — a Swiss human rights activist.

Kirpal is an active member of the Naz Foundation which successfully fought a decade-long battle in Delhi High Court and the Supreme Court, which culminated in the September 2018 verdict decriminalising consensual gay sexual relations.

PIL hangs fire

In October last year, the Advocates’ Association of Bangalore had filed a PIL in the Supreme Court to initiate contempt proceedings against the Centre for “wilful” defiance by refusing to clear several candidates for appointment as judges to various high courts in spite of the collegium iterating the recommendations.

The association had submitted that the wilful defiance was in violation of the Supreme Court’s nine-judge bench ruling in 1993, iterated by another nine-judge bench in 1998 and restated by the Supreme Court on April 20 this year.

All these rulings had said that once the Supreme Court collegium iterated a recommendation, the Centre had no option but to abide by it.

The association had expressed concern at the Centre’s growing tendency to segregate the candidates recommended by the collegium instead of approving them in one instalment.

Besides affecting seniority, a peculiar situation arises because once a candidate is recommended, the candidate usually desists from practising in any court. Any delay in clearing the recommendation leaves the candidate frustrated, sources said.

Dangerous trend

The PIL complained that the growing trend of segregating the names had set a dangerous precedent for democracy.

“It is submitted that it is a very dangerous precedent if the executive confers upon itself the power to implement only those binding recommendations that are to its liking and chooses not to implement the others. It is submitted that the failure to implement the binding decision of the collegium headed by the Hon’ble Chief Justice of India, even upon reiteration, would amount to a wilful disobedience of the orders of the Hon’ble Supreme Court,” the petition had said.

The association cited the following cases:

⚫ Karnataka High Court: Nagendra Ramachandra Naik (advocate), first recommended on October 3, 2019; first iterated on March 2, 2021; second iteration on September 1, 2021. Aditya Sondhi, first recommended on February 4, 2021, iterated on September 1, 2021.

⚫ Allahabad High Court: Umesh Chandra Sharma (judicial officer), first recommended on February 4, 2021, iterated on August 24, 2021. Syed Waiz Mian (judicial officer), first recommended on February 4, 2021, iterated on August 24, 2021.

The Supreme Court had earlier set the following timelines.

⚫ The Intelligence Bureau should submit its report/ inputs to the Centre within four to six weeks from the date of recommendation of the high court collegium.

⚫ It will be desirable that the Centre forwards the file to the Supreme Court within eight to 12 weeks from the date of receipt of views from the state government and the report/ input from the IB.

⚫ It will be for the Centre to thereafter proceed to make the appointment immediately. If the government has any reservations, the names may be sent back to the Supreme Court collegium with the specific reasons for reservation recorded.

⚫ If the Supreme Court collegium iterates the recommendation unanimously, it should be processed and the appointment made within three to four weeks.